Law & Disorder —

Federal judge blocks teen “sexting” charges

A federal judge has issued a temporary restraining order that prevents an …

Last week, we reported on the case of three Pennsylvania teens threatened with prosecution as child pornographers after school officials discovered cell-phone photos of the scantily-clad girls being traded by male students. Monday, a federal judge issued a temporary restraining order, finding that the girls (and their mothers) were likely to prevail in a civil rights lawsuit against Wyoming County District Attorney George Skumanick, and enjoining Skumanick from making good on his threat to file felony charges against the girls unless they agreed to participate in a five-week "educational" program.

Marissa Miller, Grace Kelly, and "Nancy Doe"—who were represented in the civil rights suit by their parents and the American Civil Liberties Union—were among a larger group of teen girls whose candid photos were found by Tunkhannock School District officials on the phones of male students last year. In February, Skumanick used the threat of felony prosecution under state child pornography law to force the boys and girls alike into a pair of gender-segregated educational programs, where they would “gain an understanding of how their actions were wrong,” “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify nontraditional societal and job roles.” But the three girls' parents argued that their photos couldn't possibly be considered child porn: Miller and Kelly were shown in opaque white bras, one talking on the phone, the other flashing a peace sign. Nancy Doe was pictured (apparently) fresh from the shower, with a towel wrapped around her just below the breasts.

Filing suit under a federal statute and alleging violation of their civil rights, the teens' ACLU attorneys offered three central claims. First, because the photos so obviously did not qualify as child porn under state law—and because it would be perverse in any event to consider the girls culpable for photographs circulated by others without their consent—Skumanick's threat amounted to retaliation for engaging in speech protected by the First Amendment. Second, the use of that frivolous threat to attempt to bully the teens into an education program—a threat that was effective in compelling the participation of the other boys and girls Skumanick targeted—encroached upon the constitutionally protected rights of parents to direct their children's upbringing. Finally, the requirement within that program that the girls write an essay explaining “what you did” and “why it was wrong" amounted to compelled speech, again a First Amendment violation.

Final resolution of those claims will have to wait—an initial hearing is scheduled for June. But Judge James M. Munley ruled that the plaintiffs had a sufficiently good chance of succeeding in their suit and that he was prepared to take the rare step of issuing a temporary restraining order that preemptively blocks Skumanick from filing charges against them. "Plaintiffs make a reasonable argument that the images presented to the court do not appear to qualify in any way as depictions of prohibited sexual acts," Munley wrote.

In any event, the judge noted, Skumanick "does not appear to feel immediate prosecution is necessary to protect the public from the crimes that the girls here allegedly committed." Indeed, while Skumanick has painted his restraint thus far as an act of generosity, it does bear asking: if he really believed that the teens were guilty of felony child pornography, wouldn't it be grossly inappropriate to let them off with the equivalent of a few hours' detention and a homework assignment?

Skumanick himself has voluntarily agreed to provide the photographs at issue in the case to the teens' lawyers. He had previously refused to hand them over on the grounds that he would himself be guilty of distributing child porn if he did so.